This follow-up blog to Part 8a lists the recipients and posts their responses to the issues detailed in Deadly Drift.
The letter and its enclosures were sent via USPS Express Mail envelopes by Certified Mail to ensure their tracking and receipt:
NYS Attorney General Letitia James
NYS Dept. of Health Howard A. Zucker, M.D., J.D.
NYS Senator Pamela Helming
Tompkins County Health Dept. Elizabeth Cameron
U.S. Senator Kirsten Gillibrand
Sen. Gillibrand and both state and county health departments claimed they had “no jurisdiction” and “no oversight” and told me to go elsewhere, while Sen. Helming and the Attorney General’s Office merely passed my complaint of the NYSDEC’s misconduct back to the NYSDEC for their review. The NYSDEC, in turn, dismissed my complaint without ever addressing the evidence. Their investigation could be summarized in seven words: “It was done right and that’s that!”
Scans of the responses are posted below, along with the text of my August 1, 2019 follow-up letter to Senator Helming. [Note that the representative from the NYS Attorney General’s office communicated by phone and did not wish to be named.] Readers can make their own appraisal of the conduct of those who have been entrusted with the welfare of the public at large.
Are there other avenues to explore? That’s a bad analogy. New York State provides a number of doors for the pursuance of rural justice . . . sadly, no matter how hard you knock, they never open.
Deadly Drift presents an example of an impacted individual in rural New York. What about an issue with the potential to negatively affect the health and well-being of millions of rural New Yorkers?
See the follow up to Part 8b — Non-Disclosure Agreement? — Coming soon.
Responses to letter:
1 US Senator Kirsten Gillibrand
5 NYS Senator Pamela Helming to NYSDEC
6 Senator Pamela Helming 2nd Letter
7 NYSDEC to NYS Senator Pamela Helming
August 1, 2019
The Honorable Senator Pamela Helming, 425 Exchange St, Geneva, NY 14456
Re: Letter of July 8, 2019 – Matthew Marko NYSDEC – Herbicide Drift Poisoning
Dear Senator Helming:
I was hoping for a more forthright response from the NYSDEC.
Mr. Marko must be so used to steamrollering over complainants that he has taken no pains to actually support his opinions. His letter does not properly address the facts of the complaint or reveal any convincing evidence for his conclusions — it merely seeks to discredit my claims and the credibility of the incident.
He is dismissive of the wind speed data I supplied, and contends without basis that I want “stronger laws.” I still believe that a proper oversight and enforcement of the current laws is all that is needed as both a remedy and a deterrent. He further states: “the complaint about the DEC’s investigation can only be answered from the perspective of the current laws and regulations. In this regard, Part 6 of the New York Code Rules and Regulations section 325 et seq. provides the requirements for the use and application of pesticides. These include the following:
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- Pesticides should only be used under such conditions that wind and other conditions prevent contamination to people, property, and wildlife, water, etc.
- Pesticides are to be used in accordance with the manufacturer’s label.
- The pesticide applicator must have received training, passed examination and be currently certified.”
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While Mr. Marko uses the above rules and regulations as an argument that the decision “not to commence enforcement was proper,” the findings of every authoritative source I have researched corroborates the need for enforcement measures in this case on the basis of these same rules and regulations:
University of Minnesota Extension – When is it too Windy to Spray?
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- “Always measure wind speed and direction before, during, and after the application. Always follow label information, but in general, wind speeds of 3 to 7 mph are preferable. Spray at low wind velocities (less than 10 mph).”
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Perdue University Extension – Reducing Spray Drift from Glyphosate and Growth Regulator
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- “Spray when the wind speeds are less than 10 MPH. Some labels, such as Banvel® provide a specific wind speed (15 MPH).”
- “Spray when the wind direction is away from sensitive areas”
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Montana State University Extension – Avoiding Pesticide Drift
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- “Spray when the wind speed is 10 mph wind or less.”
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Michigan State University Extension
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- “Professional pesticide applicators carry windspeed gauges to determine if windspeed are within acceptable limits There is no magic number for windspeed though ten miles per hour is a common rule of thumb as a limit for spraying.”
- “One the most important cautions on contact herbicide labels is avoid drift.”
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University of Arkansas Division of Agriculture Research & Extension – Mitigating Pesticide Spray Drift
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- “Most labels recommend not applying pesticides when wind is gusty or speed is greater than 10 mph. It is recommended for applicators to regularly and accurately measure wind speed to ensure proper spray deposition.”
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Iowa State University Extension – Wind Speed and Herbicide Application
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- “The labels for Group 4 herbicides approved with the new herbicide-resistant crops specify not to apply when wind speeds exceed 15 MPH. Other labels (e.g. Laudis, Cobra, etc.) specify 10 MPH as the maximum wind speed for application. Spraying when winds exceed label restrictions is not only illegal, but can override steps taken to eliminate off-target movement (e.g. low-drift nozzles, low spray pressure, etc.).”
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The National Weather Service recorded sustained wind speeds of 17 mph that afternoon, with gusts to 23 mph. This greatly exceeds the safety recommendations of every authoritative source I could find.
In addition, the repeated mention of professional pesticide applicators using wind speed gauges brings to light another aspect of this incident that needs investigation: If the applicator from Helena Chemical had a wind speed gauge, why was its presence never mentioned in the NYSDEC investigation or by the applicator himself?
Since Mr. Marko admits that the ‘requirements for use and application of pesticides’ also include the requirement that “Pesticides are to be used in accordance with the manufacturer’s label,” I submit the material below from the notice and enclosure of registration for Glyphosate 41%. [Italics and Bold format are added.]
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Pesticide Programs Registration Division (7505P)
1200 Pennsylvania Ave., N.W. Washington, D.C. 20460
EPA Reg. Number: 91543-1
Date of Issuance: 6/21/16
NOTICE OF PESTICIDE: X Registration
Glyphosate 41%
DIRECTIONS FOR USE
It is a violation of Federal law to use this product in a manner inconsistent with its labeling.
“Do not apply this product in a way that will contact workers or other persons, either directly or through drift. Only protected handlers may be in the area during application. For any requirements specific to your State or Tribe, consult the agency responsible for pesticide regulations.”
“Wind – Drift potential is lowest between wind speeds of 2-10 mph.”
“Sensitive Areas – The pesticide must only be applied when the potential for drift to adjacent sensitive areas (e.g. residential areas, bodies of water, known habitat for threatened or endangered species, non-target crops) is minimal (e.g. when wind is blowing away from the sensitive areas).”
Along with dismissing most of my complaint through flat statements and unsubstantiated arguments, Mr. Marko ignores much of the supporting evidence:
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- He fails to mention that my first complaint was to Helena Chemical on the afternoon of the herbicide application, June 3, 2017. Immediately after being sprayed, I went inside the house, cleaned up, and called the renting farmer [Jeff Cook], who gave me the number for the Helena Chemical manager. The manager expressed no apology, but merely told me I should get cleaned up. If Mr. Marko was unable to find a record of that complaint in his investigations of the incident, I’m sure that Jeff Cook [and the phone records] will corroborate it.
- He never explains how the applicator, with an unobstructed view for the entire length of the field, missed seeing me on a rider mower in my own backyard.
- Mr. Marko provided no response to the findings of a well-qualified inspector regarding the quality of the original investigation. This expert is willing to appear and defend his statements.
- My becoming “violently ill” as a result of that application of herbicide is definitely a fact I won’t forget. [Mr. Marko’s discounts my first-hand testimony, “Mr. Baird contends,” while he unquestioningly accepts the testimony of the investigator and the herbicide applicator.] Mine is not an isolated case of herbicide drift — the people mentioned in my letter have all agreed to testify, and may have called your office already.
- The constant rains of 2017 greatly reduced the windows of opportunity for herbicide application that spring, and thereby delayed the planting of crops. Did the pressure of farmers and contractual obligations lead Helena Chemical to spray recklessly, and in an unlawful manner? Comparing Helena Chemical’s records of application against the local weather records would reveal the extent of the community’s exposure to these toxic and deadly chemicals. Mr. Marko never even mentions this important step in fulfilling the NYSDEC’s stewardship and their mandate to protect the health and well-being of the rural community.
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Mr. Marko also states that the herbicide was “applied on the farm adjacent to his [my] residence,” and the Environmental Conservation Police visited “the farm where the pesticide was applied.” This is incorrect. The herbicide was applied on my land, land that I owned and [as I’ve come to regret] rented out for agricultural use.
What do I think of the results of Mr. Marko’s investigation? Viewed as dismissive stonewalling, it makes me angry — but as an indictment of the NYSDEC’s self-investigation of misconduct, their do-nothing oversight of licensed pesticide applicators, and their lack of concern for rural residents, it’s a powerful piece of circumstantial evidence.
Sincerely,
Doug Baird